The opinion
NORRIS, Circuit Judge,
dissenting:
I respectfully dissent. Plaintiffs contend that the State of California has subjected them to discriminatory state taxation in violation of a federal statute, the Railroad Revitalization and Regulatory Reform Act of 1976, § 306, 49 U.S.C. § 11503 (1982). A critical issue to be addressed in evaluating plaintiffs’ federal statutory claim is the determination of the true market value of the rail transportation property subject to tax. Although this factual determination may be burdensome, federal courts are no less competent than state courts in making such factual findings.
In this case, the majority eagerly seeks to pass the task of determining true market value onto the state courts. Despite this eagerness, there is simply no doctrine of federal abstention which justifies the majority’s abdication of the “virtually unflagging obligation of the federal courts to exercise the jurisdiction given them.” Colorado River Water Conservation District v. United States, 424 U.S. 800, 817 , 96 S.Ct. 1236, 1246 , 47 L.Ed.2d 483 (1976). There is no pending state criminal proceedings that may be disrupted through the exercise of federal jurisdiction. See Younger v. Harris, 401 U.S. 37 , 91 S.Ct. 746 , 27 L.Ed.2d 669 (1971). No issue of federal constitutional law is presented which could be avoided through construction of state law. See Railroad Commission of Texas v. Pullman Co., 312 U.S. 496 , 61 S.Ct. 643 , 85 L.Ed. 971 (1941). And there is no threat of a needless conflict with the administration by a state of its own affairs. See Burford v. Sun Oil Co., 319 U.S. 315 , 63 S.Ct. 1098 , 87 L.Ed. 1424 (1943). The majority asserts that its decision to defer to state courts in determining the railroads’ valuation claim is supported by the doctrine .of Colorado River Water Conservation District v. United States, 424 U.S. 800, 817 , 96 S.Ct. 1236, 1246 , 47 L.Ed.2d 483 (1976). The rarely invoked Colorado River doctrine, however, is simply inapposite to this case.
Despite the majority’s contention, none of the prerequisites for Colorado River abstention is satisfied in this case. The proposed opinion does not identify any “extraordinary circumstances” sufficient to overcome the presumption in favor of exercising the jurisdiction conferred on the federal courts by Congress. See Turf Paradise, Inc. v. Arizona Downs, 670 F.2d 813, 819 (9th Cir.1982) (abstention is an “extraordinary and narrow exception that will normally be appropriate only when the consequences of exercising jurisdiction clearly outweigh the obligation to adjudicate suits over which the federal court has jurisdiction”), ce rt. denied, 456 U.S: 1011, 102 S.Ct. 2308 , 73 L.Ed.2d 1308 (1982). There has been no assumption of jurisdiction over any res or property by the state courts, 424 U.S. at 818 , 96 S.Ct. at 1246-47 ; there has been no showing that the federal forum is less convenient for either party, id.; and it is unclear whether the state court obtained jurisdiction of the matter significantly earlier than the federal court, id. 1 Finally, the existence of section 306 demonstrates Congress’ assertion of a substantial federal interest in discriminatory taxation of railroads.
Further, in Moses H. Cone Mem. Hosp. v. Mercury Constr. Corp., 460 U.S. 1 , 103 S.Ct. 927 , 74 L.Ed.2d 765 (1983), the Supreme Court identified two additional factors relevant to the Colorado River analysis which counsel against abstention in this case. In this case, as in Cone, federal law would provide the rule of decision on the merits. 2 More importantly, the *1450 Supreme Court in Cone determined that “the probable inadequacy of the state court proceeding to protect [defendant’s] rights” weighed against abstention. 460 U.S. at 26 , 103 S.Ct. at 942 . If, as the majority apparently concedes, the railroad’s claim of discriminatory valuation is cognizable under section 306 of the 4-R Act, 49 U.S.C. § 11503 (1982), the majority’s application of Colorado River abstention disregards Congress’ specific direction that claims of discriminatory taxation of rail property are to be adjudicated in the federal courts.
In this case, Congress, by creating a discrete exception to the Tax Injunction Act, 28 U.S.C. § 1341 (1982), has determined that plaintiffs’ right to be protected from discriminatory taxation is best protected by vesting jurisdiction in federal courts. This express exception to the Tax Injunction Act, 28 U.S.C. § 1341 (1982), reflected Congress’ fears that railroads are subject to discrimination in the imposition of state taxes. By abstaining from deciding this case, the majority effectively abdicates its Article III responsibilities to a tribunal which Congress has determined to be ineffective in protecting the rights of railroads to be taxed fairly. Cf. Miofsky v. Superior Court, 703 F.2d 332 , 338 (9th Cir.1983) (abstention inappropriate where its effect would be to “emasculat[e] the exception to the Anti-Injunction Act that Congress created in enacting § 1983”).
I object to the majority’s decision requiring a federal court to defer to a state court when Congress has created a federal cause of action specifically to combat state discrimination against the plaintiffs. Therefore, I respectfully dissent.
. The majority contends that the state court proceedings are advanced relative to the proceedings in federal court. The only support for this proposition is that some related state court cases had come to judgment, while others were either on appeal or at various stages of discovery. The majority does not establish that the state litigation between these parties is significantly further advanced than this federal litigation which was originally filed in 1982.
. The majority’s contention that state law provides the rule of decision is disengenuous. The issue presented is whether the state has violated *1450 section 306 in discriminating against railroads in its valuation of rail property. That question is one of federal law. The factual determination of true market value does not depend on the application of any body of substantive law, and the statute’s incorporation of state rules governing burden-of-proof is collateral to the section 306 issue and does not weigh in favor of abstention.